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MSPB Watch Invites Public to Form Citizen Oversight Council to Oversee Federal Agencies’ Compliance with Civil Service Laws

9:20 am in Uncategorized by MSPB Watch

Premised on the notion that you must be the change you want to see in the world, MSPB Watch is seeking partners to adopt–in civilian form–the duties of an inspector general for the Office of Special Counsel and the Merit Systems Protection Board. Currently no formal, independent IG exists for either agency.

MSPB Watch is inviting any interested member of the public to form a citizen oversight council. Duties include researching applicable civil service laws and obtaining public information to determine whether OSC and MSPB are complying with these laws. Once formed, the Council would issue regular report cards on OSC’s and MSPB’s performance; make recommendations for reform; conduct “peer review” for any proposed legal or political campaigns to redress grievances; attempt to engage in formal dialogue with government officials; and provide support for any appropriate member initiatives.

Other initiatives could include “teach ins” to educate whistleblowers, federal employees, and the public about their rights under civil service laws.

Interested persons may contact David Pardo at dpardo at mspbwatch dot net for more information.

The Office of Special Counsel Needs an Inspector General

7:07 am in Uncategorized by MSPB Watch

The Office of Special Counsel does not have an inspector general. In fact, it was only in 2008 (30 years after its founding) that OSC was given some measure of oversight, with an amendment to the IG Act of 1978 that allows complaints against the Special Counsel and Deputy Special Counsel to be brought before the Council of the Inspectors General on Integrity and Efficiency.

MSPB Watch has attempted to launch citizen oversight of OSC via a number of various FOIA requests. The earliest one, still pending, was made more than a year ago, on Dec. 15, 2011. After a number of rolling completion dates, this request is now scheduled for completion for the end of January 2013. It bears repeating that the Freedom of Information Act requires agencies to provide responsive documents within twenty days. An ambitious schedule, to be sure, but waiting a year or more for documents is problematic.

It’s even more problematic when one considers that OSC is tasked with investigating and prosecuting arbitrary and capricious withholding of FOIA documents. While no implication regarding motive is intended in the present case, OSC cannot credibly work to ensure transparency within other agencies if its own transparency and adherence to the FOIA are found lacking.

The counterargument, of course, is lack of resources, prioritization, caseloads, etc. But the case needs to be made that more resources are needed. Programs and policies need to be audited and evaluated, and recommendations need to be put into reports that are then taken into serious consideration by Congress. The basic fact is that citizen oversight, limited as it is, does not work if access to information is restricted by prolonged delays.

Update: An OSC official told MSPB Watch Dec. 20 that

OSC does not have an IG. At a time of diminished resources and a significant increase in work in all program areas, OSC is not able to create an IG position. That being said, OSC reviews program effectiveness and efficiency on an ongoing basis and issues various reports, including the recently issued Performance and Accountability report, which is posted at http://osc.gov/RR_PerformanceAndAccountabilityReports.htm. In the future, OSC might contract with other IGs to perform certain services.

OSC: Commerce Dep’t Inspector General Gagged Employees From Blowing Whistle

11:17 am in Uncategorized by MSPB Watch

In a Kafkaesque turn of events, the Office of Special Counsel is alleging that top officials in the Commerce Department Office of Inspector General threatened subordinate employees with negative performance reviews if they didn’t sign non-disclosure agreements that barred them from exercising their rights to blow the whistle and petition Congress.

The Special Counsel petitioned the Merit Systems Protection Board to stay enforcement of the non-disclosure agreements, which she argued are an “any other significant change in duties, responsibilities, or working conditions” in retaliation for the employees’ potential for blowing the whistle – a/k/a their “perceived whistleblower” status.

The Special Counsel said in a press release Nov. 30 that “[b]ecause the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities.”

MSPB Member Mark A. Robbins, in a single-member decision, Nov. 29 granted the stay request for 45 days, adding that

For purposes of this nonprecedential single-member decision in this ex parte proceeding, I accept OSC’s assertion that the Former Employees’ inability to report perceived wrongdoing to the appropriate authorities as a result of signing the nondisclosure agreement may constitute a “significant change in duties, responsibilities, or working conditions” under 5 U.S.C. § 2302(a)(2)(A)(xi).“

Other examples of “any other significant change in duties, responsibilities, or working conditions” may be found here.

From OSC’s press shop:

OSC Granted Stay in Challenge to Commerce Department Gag Clauses

FOR IMMEDIATE RELEASE
CONTACT: Ann O’Hanlon, (202) 254-3631; aohanlon@osc.gov

WASHINGTON, D.C./November 30, 2012 –

The Merit Systems Protection Board (MSPB) yesterday granted a stay requested by the Office of Special Counsel (OSC) prohibiting enforcement of unlawful gag clauses in settlement agreements between the Commerce Department’s Office of Inspector General (OIG) and four former employees of the OIG, each of whom was coerced into signing an agreement under threat of harm to their career prospects and future employment. The order is available here.

The agreements prohibit employees from voluntarily communicating with OSC or Congress. The employees were told that manufactured negative performance appraisals would be shared with prospective employers if the employees did not sign the nondisclosure agreements.

The MSPB’s action means that the personnel actions taken or threatened to be taken by OIG senior management must cease for 45 days, giving OSC further time to investigate the allegations. These personnel actions include the threatened communication with prospective employers and the imposition of significant changes in the employees’ working conditions.

The order concludes that an agreement restricting employees’ ability to report wrongdoing is a change in working conditions and is therefore a personnel action under the Whistleblower Protection Act.

In addition, the order applies the Lloyd-LaFollette Act, a 1912 law codifying the rights of federal employees to blow the whistle to Congress.

Because the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities.

“OSC is committed to ensuring that agencies do not interfere with whistleblowing to Congress,” said Special Counsel Carolyn Lerner. “We are pleased that the MSPB has granted the stay so that OSC can further investigate this matter.”